<PAGE>
As filed with the Securities and Exchange Commission on August 31, 1998
Registration No. 333-59323
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
Under The Securities Act of 1933
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Cinergy Corp.
(Exact name of registrant as specified in its charter)
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DELAWARE 31-1385023
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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139 EAST FOURTH STREET
CINCINNATI, OHIO 45202
(513) 421-9500
(Address, including zip code, and
telephone number, including area code, of
registrant's principal executive offices)
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WILLIAM L. SHEAFER
Vice President and Treasurer
Cinergy Corp.
139 East Fourth Street
Cincinnati, Ohio 45202
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
Copies to:
BRADLEY C. ARNETT, ESQ. PANKAJ K. SINHA, ESQ.
Senior Counsel Skadden, Arps, Slate, Meagher & Flom LLP
Cinergy Corp. 1440 New York Avenue, N.W.
139 East Fourth Street Washington, D.C. 20005
Cincinnati, OH 45202
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Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
PROSPECTUS
771,258 Shares
Cinergy Corp.
COMMON STOCK
Of the Par Value $.01 Per Share
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This Prospectus relates to an aggregate of 771,258 shares (the "Shares") of
common stock, par value $.01 per share ("Common Stock"), of Cinergy Corp., a
Delaware corporation (the "Company"), which may be offered (the "Offering") for
sale by a certain stockholder (the "Selling Stockholder") who acquired such
Shares in a certain business acquisition by the Company (the "Acquisition").
The Shares are being registered under the Securities Act of 1933, as amended
(the "Securities Act"), on behalf of the Selling Stockholder in order to permit
the public sale or other distribution of the Shares.
The Shares may be sold or distributed from time to time by or for the account of
the Selling Stockholder through dealers, brokers or other agents, or directly to
one or more purchasers, at market prices prevailing at the time of sale or at
prices otherwise negotiated. The Company will receive no portion of the
proceeds from the sale of the Shares offered hereby and will bear certain
expenses incident to their registration. See "Selling Stockholder" and "Plan of
Distribution."
The Common Stock is traded on The New York Stock Exchange (the "NYSE") under the
symbol "CIN." On August 28, 1998, the last reported price for the Common Stock
on the NYSE was $34-5/8 per share.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
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The date of this Prospectus is , 1998
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C.; Suite 1400, 500 West Madison
Street, Chicago, Illinois; and Suite 1300, Seven World Trade Center; New York,
N.Y. Copies of such material can also be obtained from the Public Reference
Section of the Commission at its principal office at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates, or from the Commission's Internet
Web Site at http://www.sec.gov. In addition, such material can also be
inspected at the office of the NYSE.
The Company has filed with the Commission a Registration Statement on Form S-3
under the Securities Act with respect to the Shares offered hereby (including
all amendments and supplements thereto, the "Registration Statement"). This
Prospectus, which forms a part of the Registration Statement, does not contain
all of the information set forth in the Registration Statement, certain parts of
which have been omitted in accordance with the rules and regulations of the
Commission. Statements contained herein concerning the provisions of certain
documents are not necessarily complete and, in each instance, reference is made
to the copy of such document filed as an exhibit to the Registration Statement
or otherwise filed with the Commission. Each such statement is qualified in its
entirety by such reference. The Registration Statement and the exhibits thereto
can be inspected and copied at the public reference facilities and regional
offices of the Commission and at the offices of the NYSE referred to above.
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No dealer, salesman, or any other person has been authorized to give any
information or to make any representations other than those contained in or
incorporated by reference in this Prospectus in connection with the offer
contained in this Prospectus, and, if given or made, such information or
representations must not be relied upon as having been authorized by the Company
or the Selling Stockholder. This Prospectus does not constitute an offer to
sell or a solicitation of an offer to buy any of the securities offered hereby
in any state to any person to whom it is unlawful to make such offer or
solicitation in such state. The delivery of this Prospectus at any time does
not imply that the information herein is correct as of any time subsequent to
the date hereof.
----------------
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There is hereby incorporated in this Prospectus by reference the following
documents heretofore filed with the Commission pursuant to the Exchange Act:
1. The Company's Annual Report on Form 10-K for the year ended December 31,
1997.
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended March
31, 1998 and June 30, 1998.
3. The Company's Current Report on Form 8-K dated July 15, 1998.
4. The Company's Proxy Statement dated March 16, 1998, relating to its Annual
Meeting of Shareholders held on April 22, 1998.
5. The description of the Common Stock contained or incorporated in the
Company's Registration Statement on Form 8-B, dated September 1, 1994, including
any amendments or reports filed for the purpose of updating such description.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of this offering shall be deemed to be incorporated in this
Prospectus by reference and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which is deemed to be incorporated
by reference herein or in the Prospectus Supplement modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
THE COMPANY HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH PERSON TO
WHOM A COPY OF THIS PROSPECTUS HAS BEEN DELIVERED, ON THE WRITTEN OR ORAL
REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS REFERRED TO
ABOVE WHICH HAVE BEEN OR MAY BE INCORPORATED IN THIS PROSPECTUS BY REFERENCE,
OTHER THAN EXHIBITS TO SUCH DOCUMENTS. REQUESTS FOR SUCH COPIES SHOULD BE
DIRECTED TO MR. WILLIAM L. SHEAFER, VICE PRESIDENT AND TREASURER, CINERGY CORP.,
139 EAST FOURTH STREET, CINCINNATI, OHIO 45202 (TELEPHONE 513-421-9500).
<PAGE>
THE COMPANY
The Company is a registered holding company under the Public Utility
Holding Company Act of 1935, as amended, and the parent company of The
Cincinnati Gas & Electric Company ("CG&E), PSI Energy, Inc. ("PSI"), Cinergy
Services, Inc. ("Services"), Cinergy Global Resources, Inc. ("Global"), and
Cinergy Investments, Inc. ("Investments"). CG&E is an operating utility
primarily engaged in providing electric and gas service in the southwestern
portion of Ohio and, through its utility subsidiaries, in adjacent areas in
Kentucky and Indiana. PSI is an operating utility primarily engaged in
providing electric service in north central, central, and southern Indiana.
Services provides management, financial, administrative, engineering, legal and
other services to the Company, CG&E, PSI, Global, and Investments, as well as
affiliates thereof. The Company conducts its international businesses through
Global and its subsidiaries and conducts its non-regulated, domestic businesses
through Investments and its subsidiaries.
The Company's principal executive office is located at 139 East Fourth
Street, Cincinnati, Ohio 45202 (telephone 513-421-9500).
USE OF PROCEEDS
This Prospectus relates to Shares being offered and sold for the accounts of the
Selling Stockholder. The Company will not receive any proceeds from the sale of
the Shares but will pay all expenses related to the registration of the Shares.
See "Plan of Distribution."
SELLING STOCKHOLDER
The Selling Stockholder is Apache Corporation, a Delaware corporation. As of
August 28, 1998, the aggregate number of shares of Common Stock beneficially
owned by the Selling Stockholder, and the aggregate number of shares of Common
Stock registered hereby that the Selling Stockholder may offer and sell pursuant
to this Prospectus, is 771,258. Because the Selling Stockholder may offer all
or a portion of the Shares at any time and from time to time after the date
hereof, no estimate can be made of the number of Shares that the Selling
Stockholder may retain upon completion of the Offering. To the knowledge of the
Company, other than with respect to the Acquisition, the Selling Stockholder has
not had within the past three years any material relationship with the Company
or any of its predecessors or affiliates.
PLAN OF DISTRIBUTION
The Selling Stockholder may sell or distribute some or all of the Shares from
time to time through dealers or brokers or other agents or directly to one or
more purchasers, in transactions on the NYSE or other exchanges on which the
Common Stock may be listed for trading, in privately negotiated transactions or
in the over-the-counter market, or in brokerage transactions, or in a
combination of such transactions. Such transactions may be effected by the
Selling Stockholder at market prices prevailing at the time of sale, at prices
related to such prevailing market prices, at negotiated prices, or at fixed
prices, which may be changed. Brokers, dealers, or other agents participating
in such transactions as agent may receive compensation in the form of discounts,
concessions or commissions from the Selling Stockholder (and, if they act as
agent for the purchaser of such Shares, from such purchaser). Such discounts,
concessions or commissions as to a particular broker, dealer, or other agent
might be in excess of those customary in the type of transaction involved. To
the extent required, the Company will file, during any period in which offers or
sales are being made, one or more supplements to this Prospectus to set forth
any other material information with respect to the plan of distribution not
previously disclosed.
The Selling Stockholder and any such brokers, dealers or other agents that
participate in such distribution may be deemed to be "underwriters" within the
meaning of the Securities Act, and any discounts, commissions or concessions
received by any such brokers, dealers or other agents might be deemed to be
underwriting discounts and commissions under the Securities Act. Neither the
Company nor the Selling Stockholder can presently estimate the amount of such
compensation. The Company knows of no existing arrangements between the Selling
Stockholder and any other broker, dealer or other agent relating to the sale or
distribution of the Shares.
Under applicable rules and regulations under the Exchange Act, any person
engaged in a distribution of any of the Shares may not simultaneously engage in
market activities with respect to the Common Stock for the applicable period
under Regulation M prior to the commencement of such distribution. In addition
and without limiting the foregoing, the Selling Stockholder will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including without limitation Rule 10b-5 and Regulation M, which
provisions may limit the timing of purchases and sales of any of the Shares by
the Selling Stockholder. All of the foregoing may affect the marketability of
the Common Stock.
The Company will pay substantially all of the expenses incident to this Offering
of the Shares by the Selling Stockholder to the public other than commissions,
concessions and discounts of brokers, dealers or other agents. The Selling
Stockholder may indemnify any broker, dealer, or other agent that participates
in transactions involving sales of the Shares against certain liabilities,
including liabilities arising under the Securities Act. The Company may agree
to indemnify the Selling Stockholder and any such statutory "underwriters" and
controlling persons of such "underwriters" against certain liabilities,
including certain liabilities under the Securities Act.
In order to comply with certain states' securities laws, if applicable, the
Shares will be sold in such jurisdictions only through registered or licensed
brokers or dealers.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 600,000,000 shares
of Common Stock, par value of $.01 per share. The holders of Common Stock are
entitled to one vote per share on all matters to be voted upon by stockholders,
including elections of directors. The holders of Common Stock are not entitled
to cumulate votes for the election of directors. The Board of Directors of the
Company consists of 17 members divided into three classes. The directors of a
class will hold office for a term of three years.
The holders of Common Stock are entitled to receive dividends as and when
declared by the Board of Directors of the Company out of funds legally available
therefor. In the event of a liquidation, dissolution or winding up of the
affairs of the Company, the holders of Common Stock are entitled to share
ratably in any assets remaining after payment in full of all liabilities of the
Company. Because the Company conducts its operations primarily through its
subsidiaries, CG&E and PSI, the ability of the Company to pay dividends to
holders of Common Stock depends on the ability of CG&E and PSI to pay common
dividends to the Company.
* No common dividends can be paid by CG&E if there are dividends in arrears
on CG&E Preferred Stock.
* No common dividends can be paid by PSI if there are dividends in arrears on
PSI Preferred Stock. PSI's Mortgage Indenture ("Indenture") provides that, so
long as any bonds are outstanding under the Indenture, PSI shall not declare or
pay cash dividends on shares of its capital stock (other than on PSI Preferred
Stock) except out of its earned surplus or net profits. In addition, PSI's
Amended Articles of Consolidation limit dividends on common stock to 75% of net
income available for common stock if the ratio of common stock equity to total
capitalization is less than 25%, or to 50% of such net income available if such
ratio is less than 20%. The ability of PSI to pay common dividends has not
heretofore been impaired by any such prohibition, restriction or limitation, nor
is it anticipated that any such prohibition, restriction or limitation will
impair the ability of PSI to pay common dividends hereafter.
* CG&E and PSI each have a series of junior subordinated debentures currently
outstanding. The terms of each series of debentures gives the applicable issuer
(CG&E or PSI) the right to extend from time to time the interest payment period
for such debentures, and as a consequence, interest payments on the debentures
would be deferred during any such extended interest payment period. In the
event that CG&E or PSI exercises such right, such company may not, among other
things, declare or pay dividends on any of its capital stock. The Company
believes that the extension of an interest payment period on either series of
debentures is unlikely.
The holders of Common Stock do not have preemptive rights with respect to
the issuance of additional shares of capital stock by the Company. Common Stock
does not contain any redemption provisions or conversion rights.
The Company's Certificate of Incorporation and By-Laws contain certain
provisions that may delay or deter a change in control of the Company. Such
provisions require, among other things, (i) a classified Board of Directors,
with each class containing as nearly as possible one-third of the whole number
of members of the Board and the members of each class serving for three-year
terms, (ii) a vote of at least 80% of the Company's voting power to amend
certain provisions of the Company's By-Laws, and (iii) advance notice procedures
with respect to nominations of directors other than by or at the direction of
the Company's Board of Directors.
LEGAL MATTERS
The validity of the Shares offered hereby will be passed upon for the
Company by Skadden, Arps, Slate, Meagher & Flom LLP, Washington, D.C, special
counsel to the Company.
EXPERTS
The consolidated balance sheets of the Company as of December 31, 1997 and
1996 and the related consolidated statements of income, changes in common stock
equity and cash flows for each of the three years in the period ended December
31, 1997, included in (a) the Company's Annual Report on Form
10-K for the year ended December 31, 1997, and (b) the Company's Proxy Statement
dated March 16, 1998, relating to its Annual Meeting of Shareholders held on
April 22, 1998, have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto, and are
incorporated herein by reference in reliance upon the authority of said firm as
experts in accounting and auditing in giving said reports.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses in connection with
the offering described in the Registration Statement:
Securities and Exchange Commission registration fee . . $ 7,373
Legal fees and expenses . . . . . . . . . . . . . . . . 10,000
Accounting fees and expenses. . . . . . . . . . . . . . 5,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . 2,627
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Total. . . . . . . . . . . . . . . . . . . . . . $25,000
=======
All of the above, except for the Commission fee, are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As a Delaware corporation subject to the Delaware General Corporation Law
("DGCL"), the Company is empowered by Section 145 of such law to indemnify
officers and directors against certain expenses, liabilities and payments, as
therein provided. Article VI of the Company's By-Laws provides that the Company
shall indemnify specified persons, including officers and directors of the
Company, against liabilities under certain circumstances. Also, Article VI
provides that the Company may purchase and maintain insurance on behalf of or
for any director, officer, employee or agent for protection against certain
liabilities or claims asserted against such persons. In addition, Article Sixth
of the Company's Certificate of Incorporation provides limits to the personal
liability of the Company's directors for breach of fiduciary duties to the
fullest extent permitted by the DGCL.
The Company maintains an insurance policy covering its directors and
officers against certain civil liabilities, including liabilities under the
Securities Act.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, or persons controlling the Registrant
pursuant to the foregoing provisions, the Registrant has been informed that in
the opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
ITEM 16. EXHIBITS
NUMBER EXHIBIT DESCRIPTION
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* 4(a) Certificate of Incorporation of the Company (Exhibit
to Company's 1993 Form 10-K in File No. 1-11377).
* 4(b) By-Laws of the Company as amended April 22, 1998
(Exhibit to Company's March 31, 1998 Form 10-Q in
File No. 1-11377).
# 5 Opinion and Consent of Skadden, Arps, Slate, Meagher
& Flom LLP.
# 23(a) Consent of Arthur Andersen LLP.
# 23(b) Consent of Counsel (included in Exhibit 5 above).
# 24(a) Powers of Attorney.
# 24(b) Certified copy of a resolution of the Company's
Board of Directors.
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* Incorporated by reference as indicated.
# Previously filed.
<PAGE>
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement.
Provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to section 13 or section 15(d) of the Exchange
Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offerings of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities Act,
each filing of the registrant's annual report pursuant to section 13(a) or
section 15(d) of the Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions set forth or referred to in Item 15, or
otherwise, the registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Cincinnati, State of Ohio, on August
31, 1998.
CINERGY CORP.
By: *James E. Rogers
James E. Rogers, Vice Chairman,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signatures Title Date
(i) Principal executive officer:
*James E. Rogers Vice Chairman, August 31, 1998
James E. Rogers President and Chief
Executive Officer
(ii) Principal financial officer:
/s/ CHARLES J. WINGER Vice President and August 31, 1998
Charles J. Winger Chief Financial
Officer
(iii) Principal accounting officer:
/s/ JOHN P. STEFFEN Vice President and August 31, 1998
John P. Steffen Comptroller
<PAGE>
Signatures Title Date
(iv) Directors:
* Neil A. Armstrong Director August 31, 1998
* James K. Baker Director August 31, 1998
* Michael G. Browning Director August 31, 1998
* Phillip R. Cox Director August 31, 1998
* Kenneth M. Duberstein Director August 31, 1998
* Cheryl M. Foley Director August 31, 1998
* John A. Hillenbrand II Director August 31, 1998
* George C. Juilfs Director August 31, 1998
* Melvin Perelman Director August 31, 1998
* Thomas E. Petry Director August 31, 1998
* Jackson H. Randolph Director August 31, 1998
* James E. Rogers Director August 31, 1998
* John J. Schiff, Jr. Director August 31, 1998
* Philip R. Sharp Director August 31, 1998
* Van P. Smith Director August 31, 1998
* Dudley S. Taft Director August 31, 1998
* Oliver W. Waddell Director August 31, 1998
*By: /s/ WILLIAM L. SHEAFER
William L. Sheafer, Attorney-in-fact
